On July 8, 2011, the Fourth District Court of Appeal ordered the publication of Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) __Cal.App.4th__. The appellate court reversed in part a judgment denying a petition for writ of mandate that challenged a mitigated negative declaration (MND) adopted by the City of Chula Vista for a new expanded Target store. The Fourth District remanded the matter to the trial court to determine whether the mitigation measures required as a condition for receiving building permits adequately addressed contaminated soils.

In November 2008, Target proposed demolishing an existing Target store and other facilities on a 9.9-acre site in order to replace them with a new larger Target store. In January 2009, the City of Chula Vista completed an initial study that recommended numerous mitigation measures set forth in the MND to address potentially significant impacts pertaining to air quality, geology and soils, hazards and hazardous materials, hydrology and water quality, and traffic/ transportation. On July 13, 2009, Citizens for Responsible Equitable Environmental Development (CREED) submitted a comment letter along with a CD-ROM of thousands of pages of materials. On July 14, 2009, the City Council approved the MND, a mitigation monitoring program, and amended the zoning map, after responding to the concerns raised by CREED in its comment letter.

CREED filed a petition for writ of mandate alleging the City should have prepared an environmental impact report (EIR) before approving the project. The trial court denied the petition and CREED appealed.

The appellate court first addressed CREED’s argument that the record contains substantial evidence of a fair argument that the project may have a significant environmental impact by disturbing contaminated soils left behind by a formerly operational gas station. In 1996, soil sampling was conducted, and in 2008, a corrective action plan was created to reduce the methyl tertiary butyl ether (MTBE) on the property. The monitoring program associated with the project required that mitigation measures in the corrective action plan be completed before building permits could be issued. The court rejected the City’s assertion that the groundwater, and not the soil, was contaminated, and that grading activities would not affect the contaminated groundwater. Instead, the court found it was more likely the pollutants that leaked from underground storage tanks and product lines when the gas station was still operational had contaminated the soil underneath the project site before reaching the groundwater. Since the corrective action plan was not part of the record, the court of appeal decided to remand to the trial court to determine whether the corrective action plan adequately addressed contaminated soil. If the plan does not address contaminated soil, the trial court must order an EIR.

The court next rejected CREED’s arguments that the project may have a significant impact by exposing sensitive receptors to increased air pollution by causing a significant cumulative effect on particulate matter and the ozone and by increasing greenhouse gas emissions. First, the court found the air quality assessment prepared for the project established that it would not cause emissions to exceed any air quality significance thresholds. Because CREED failed to cite evidence that contradicted these conclusions, there was no substantial evidence of a fair argument that the project could have a significant air pollution impact on sensitive receptors. Second, the court found the air quality assessment showed that any net increases in emissions of air pollutants would be below the significance level for all pollutants. Again, CREED failed to cite substantial evidence that disputed these conclusions, so the court concluded no fair argument had been made. Finally, the court found the City properly exercised discretion in setting the threshold of significance for greenhouse gas emissions to be compliance with AB 32. Citing CEQA Guidelines, section 15064.4, which became effective March 18, 2010, the court commented that lead agencies are now allowed to decide what threshold of significance for greenhouse gas emissions to apply to a project. The City was not required to apply the different thresholds CREED favored.